Warrantless Wiretapping Challenged in 4th Circuit
By Joe Palazzolo | September 28, 2009 11:27 pm

It’s been nearly eight years since federal agents raided a group of homes, Islamic organizations and businesses  in a massive terrorist-financing investigation centered in Herndon, Va., that appears now to have largely sputtered out.

But the spin-off litigation — including challenges to grand jury subpoenas and contempt findings – continues to churn in the federal courts. Last week, we went to Richmond to hear arguments in the U.S. Court of Appeals for the 4th Circuit, but we were shooed away. Hearing sealed. Grand jury stuff, we were told.

But the Sept. 23 hearing was a “re-argument,” according to the docket, which is otherwise crowded with sealed motions we can’t see. Fortunately, a recording of the previous hearing, held in March, is available. The arguments at that March hearing haven’t previously been reported.

It’s unclear why the court ordered a mulligan. But we did make this discovery: Defense lawyers are challenging the legality of the Bush administration’s warrantless wiretapping program in the 4th Circuit — a rare thing indeed.

No federal appellate court in the country has ruled on the constitutionality of the NSA program, which critics say violates the First and Fourth Amendments.

An Islamic think tank that came under scrutiny in the terrorism-financing probe, the International Institute for Islamic Thought, is pressing the issue on appeal.  At the March hearing, a lawyer for the institute, Steven Barentzen, wanted the 4th Circuit to pronounce the surveillance program illegal and withdraw the contempt finding.

Barentzen argued any information gleaned from the NSA program was “unlawfully obtained,” according to the recording. He asked the panel to order the government to say whether the organization had been targeted by the NSA surveillance program, as the organization contends it was. The government maintains it does not have to reveal its investigative methods. The think tank, known as IIIT, has denied any ties to terrorism.

It isn’t known why the think tank believes it was targeted by the warrantless surveillance program. Its offices, along with other homes and businesses, were raided in March 2002 by federal agents, in a terror-financing case that had its roots in Florida in the 1990s, before the Sept. 11, 2001 attacks and the NSA surveillance program.

The central figure in that Florida probe, former University of South Florida professor Sami Al-Arian, is fighting his own criminal contempt charges in the Eastern District of Virginia for refusing to testify before a grand jury about his knowledge of IIIT. Al-Arian pleaded guilty in the Middle District of Florida in 2006 to one count of assisting Palestinian Islamic Jihad, which conducted suicide-bombing attacks in Israel.

Barentzen told the 4th Circuit in March:

“Triple IT was held in contempt pursuant to 28 USC 1826a for failing to produce documents in response to a grand jury subpoena, despite having been ordered to do so. IIIT has contended from almost the beginning, after receiving the subpoena that it had just cause for refusing to reply to the subpoena pursuant to the Supreme Court’s decision in Gelbard versus the United States…”

‘[T]he subpoena was derived from information that the government had unlawfully obtained pursuant to electronic surveillance of IIIT under the NSA’s warrantless surveillance program, which was authorized by President Bush after the September 11 attacks…”

The lower court  ”found the government was not required to admit or deny whether any surveillance under the NSA program had occurred. And it’s our contention the district court erred in that respect.”

In tempting the 4th Circuit to consider the Bush-era program, Barentzen is fighting an uphill battle. Beginning in 2006, shortly after The New York Times disclosed the existence of the NSA program, federal district judges across the country began telling litigants — mostly defendants in criminal cases — they were not entitled to learn whether they came under scrutiny through the NSA program.  Still, litigation of any kind over the NSA program rarely rises to the appellate level.

The first time it did, in 2007, the U.S. Court of Appeals for the 6th Circuit ruled that the plaintiffs — a group of journalists and lawyers — lacked standing to sue, because they couldn’t prove the government had spied on them.

The 4th Circuit appears to want to follow the 6th Circuit’s lead. At the March hearing, the panel resisted Barentzen’s effort to make the NSA program the main topic. Two judges questioned whether the case was moot because the government had received the documents it was seeking from the institute.

“Why are we even discussing this argument then?” one judge asked, referring to Barentzen’s claim that the NSA program was illegal. The recording of the hearing does not identify the judges, but the docket shows the panel was comprised of Chief Judge William Traxler, Judge Diana Motz and Judge Dennis Shedd.

Barentzen said the institute had standing because it had been ordered to pay a contempt fine, a portion of which has so far gone unpaid.

The panel of judges avoided mention of the NSA program when questioning Assistant U.S. Attorney Gordon Kromberg, of Virginia’s Eastern District.

The constitutionality of the NSA program is also being litigated in another case across the country. In proceedings before a district judge in San Francisco, a defunct Islamic charity, Al-Haramain Islamic Foundation, said it received classified documents that proves it was wiretapped.  Because of the documentary proof that Al-Haramain claimed to have seen, standing is less of an issue in that case.

Freelance journalist Joseph Goldstein and Main Justice’s Mary Jacoby contributed to this report. Goldstein covered this case for the New York Sun. He purchased a recording of the March hearing from the court.

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